Warman vs Free Dominion and John Does – the Jury Trial (day 13)

Week 1

Day 1′s events can be read here.

Day 2′s events can be read here.

Day 3′s events can be read here.

Day 4′s events can be read here.

I’m afraid that I was unable to attend on day 5.  I have heard some accounts which I would like to share with you.  However, do remember I have not seen this myself, so it is just a person on the internet repeating a rumour….so give the account weight accordingly.  Mr. Warman was still on the stand and acted up the self pity, even bringing forth tears for the jury, when he recounted just how difficult this has all been for him, the righteous protector of our society.

Week 2

Day 6′s events can be read here, as a real newspaper sent the liberal Glen McGregor to cover the appearance of Mr. Icke as a witness.

Day 7′s events can be read here.

Day 8′s events can be read here.  An alternate narrative from a different observer can be found here.

Week 3

Day 9  was a procedural day, without the jury present.  It was to involve discussions between the judge and the counsel about procedural matters.  As such, I chose to conserve my strength and skip day 9.

Day 10’s events (the closing arguments) can be read here.

Day 11 was used for the judge to give instruction to the jury – a factor almost as important for a jury to reach the ‘just’ verdict as the evidence presented.  Unfortunately, I was unable to attend, but hope to report another’s observations of this soon.  From what I heard, however, Mr. Warman had been alternating between chewing his fingernails and pen – perfectly understandable, under the circumstances.  One can only admire the Fourniers for their grace under pressure!!!

Day 12, from the information I have gathered, the jury had spent in deliberations.

Day 13, on the other hand, had a little bit of action to offer…  If you’d like, I’ll share my observations with you.

Due to other-life-obligations, I only arrived at the courthouse around lunchtime – and all was quiet.  Courtroom # 35 at the Elgin St. Courthouse was abandoned and locked – though I did hear that Barbara Kulaszka, the defense counsel, had been seen in the vicinity recently.

The only thing I myself saw was a cart with take-out lunches being wheeled by the bailiff to the jury room…

Along with another observer, I went in search of the Fourniers – and found them in a nearby eatery, finishing their lunch.  And, they had some amazing news:  Connie’s daughter had just given birth to her first son!!!


If you follow my blog regularly, you may have realized that I have an over-developed (to put it mildly) mothering instinct:  just imagine ‘mothering’ and and industrial dose of OCD combined…(really – ask my past employees!).  So, though I know it is no achievement of my own, I could not help but experience a reflected feeling of bliss, radiating from Connie and Mark!!!

Bringing a new life into this world – what could be more wonderful?

And then I considered just how much this ‘Maximum Disruption’ shtick was costing – not just the brave Connie and the stoic Mark:  I understood why they are doing this!  For the good of all of us, our children and our grandchildren!

But, the cost is also born by their families:  Connie’s daughter was deprived of her mother, who was stuck awaiting the outcome of this trial, when she needed her mother to be with her, to share the moment her own son was born…

And, it is also born by the innocent baby boy – deprived of his protective family during this vulnerable moment.

This is not a trivial matter and something we must keep in mind when we consider the cost of our freedom!

And yet, I have no doubt that this young Canadian will understand that precisely because he, as a free human being and a Canadian, is precious and deserves to have his innate rights respected by everyone, especially by our government and those who are its agents, that his grandparents have sacrificed so much in protecting him and his future!!!

Would that all of our young Canadians knew that they were so cherished!  Would that all Canadians understood they were worth nothing less than this!!!

I’m sorry – please, forgive me…I’m going off on a tangent here.  Refocusing…

The afternoon brought some excitement to the courtroom:  we had a question from the jury!

To recap:  this is Friday, the 27th of September, 14:00 o’clock.

Jason Bertoucci and Roger Smith had to return to BC, so only Barbara Kulaszka, the counsel for the defense, and Mark and Connie Fournier were at the defense table.

Despite this being a Jewish holiday (as far as I understand), Mr. Katz breezed into the courtroom shortly after his law student had, and started putting his trim lawyer’s jacket and billowing lawyer’s robes over his crisp white shirt and black trousers.

Mr. Warman was absent – and it was his absence that made me wonder just how many holidays do employees of the Department of Defense get, that he can spend so many days in court…

Once Justice Smith came in and the court was reconvened, he opened the brown envelope and read the question from the jury:  on the defense of ‘fair comment’ – must all points be met or just a few of them?

OK – it is clear that I would understand this question better had I seen the charge to the jury…please, do forgive me.

But, instead of being sequential now, I’ll try to explain what I understand (in my layman’s mind) is going on, so as to make some sense of this.

The jury was provided with many, many documents.  One of these was a binder that contained (highlighted) each and every statement that Mr. Warman claimed was defamatory (taken out of context – the context itself would be in the other documents) as well as a multi-point question the jury has to answer regarding the statement.  It was regarding these multiple points that the question asked by the jury was about.

Now, to the best of my legally-untrained-understanding, the ‘a’ part of the question was whether the statement had the potential to be defamatory – a legal bit to be determined by the judge, not the jury.  I could, however, be very wrong in this – yet, that is what I think might have been the upshot of what was said.  (Yes, severe qualification, because I was unaware of the original charge to the jury and because I have no legal training, so following the arguments in court on this is not as easy as one might imagine, because I am quite ignorant of the legal principles that are just hinted at, not overtly stated, and so on…)

My understanding of the outcome is that the judge said that he will have decided the ‘a’ part, but the jury must answer all the following parts.  And, all but ‘malice’ must be satisfied for the defense of ‘fair comment’ to hold.

That is, the statement must:

  • be a comment/opinion
  • be understandable to be a comment/opinion (and not a statement of fact)
  • must be an opinion a ‘reasonable person’ could possibly have arrived at given the factual evidence

At this point, the onus of ‘proof’ shifts from the defendant to the plaintiff:  if the plaintiff can prove that the comment/opinion was stated with actual malice, then this would defeat the defense of ‘fair comment’.

There was a LOT of back and forth between the judge and both lawyers, both on the questions themselves as well as on the definitions of the words that went into the questions.  Phrases like ‘honestly held opinion’ and ‘beyond reasonable doubt’ floated about.

Yet, it began to seem to me that both the judge and the counsel (both Mr. Katz and Ms. Kulaszka) were beginning to have serious concerns about the original instructions to the jury!  (If only I had been there to record them…)

Also, there now arose serious reservations about the difference between the questions posed to the jury regarding each statement that was claimed to have been defamatory and the questions asked of the jury in that ‘concise’ document that was meant to help them.  Again, there was much back and forth (that went right over my head) between the judge and the two counsels, but, in the end, it was decided that the questions ought to be re-phrased to be more in line with the judge’s charge to the jury and that the new sheets with the statements under judgment and the questions to be answered shall be reprinted and provided to the jury.

The jury had let it be known that they do not plan to deliberate over the weekend.

Then, the jury had let it be known that they are tired and wish to go home now rather than wait for the revised questions.  Upon reading this, the judge joked about the jury wishing to keep the ‘civil service’ hours….

The upshot of all this was that the revised questions were to be submitted to the judge via email later that day and that the jury would be provided the updated documents on Monday morning, at which point they shall resume their deliberations…

I guess we shall see what next week shall bring!





Connie Fournier on the fall of ‘Section 13’

Connie and Mark Fournier are the founders and operators of Free Dominion, Canada’s first and best known ‘little c’ conservative discussion forum.  As such, they have been in the forefront of the battles for freedom of speech and against ‘Section 13’ of the Human Rights Code, which criminilizes any speech which might, potentially, hurt someone’s feelings.

Of course, as per ‘Xanthippa’s first law of human dynamics’ (any rule and/or law will, eventually, be pushed to its extreme and abused/applied in ways the drafters never imagined), ‘Section 13’ became abused, had 100% conviction rate, and ‘truth’ was no defense….

Alas, passing laws is much easier than repealing them, which is why it took so long, and was such a difficult battle.

And the Fourniers were in the thick of it:  Dr. Michael Geist, in his ‘Milestones in 2012 from A to Z, even named ‘F’ is for ‘Free Dominion’!

It is natural, therefore, that I sought an interview with Connie Fournier on the occasion of the fall of ‘Section 13’.  Connie graciously agreed.  Here is the interview:

Q: How did you feel when you heard that Bill C-304, which strikes down the infamous ‘Section 13’, had passed the final reading in the Senate and received Royal Assent, making it a law?
A:  We are just talking about how both of us are having a hard time believing it is real.  We have fought against Section 13 so hard for so long that it is hard to believe that we actually won!  Obviously, though, we are ecstatic.

Q: What impact do you think this will make on the political discussion in Canada?
A:  We are hoping that it will make people less afraid to discuss controversial issues.  We have always believed that the best way for Canadians to deal with their differences is for them to be able to discuss them openly.  When you have a potential legal threat hanging over your head if someone decides your words are capable of making someone uncomfortable, it has a major chilling effect on discussion…especially political discussion, which is heated at the best of times.  When you add to that the effect of having a third party starting these actions as his own personal crusade, you have real problems.
Q: Do you think that your legal situation will be impacted by this and if so, how?
A:  When it comes to the defamation suits that Richard Warman has filed against us, this is very important.  When someone claims damages for defamation, they have to demonstrate that they had a good reputation that was unfairly damaged as a result of the words of the defendents.  In this case, the plaintiff’s actions have now directly resulted in two governments (the Federal government and the BC government) having to enact legislation to protect the public from him. (BC Libraries and Bill C-304…I can provide more info if you need it)  This is a direct reflection on his reputation.

Q: Do you think this will lead to eventual de-funding and/or dismantling of the quasi-judicial Human Rights Commissions/Tribunals in favour of trials in real courts with proper legal procedures?
A:  I wouldn’t be surprised if this resulted in such a move.  Hopefully the first thing that will happen, though, is for provincial HRCs to follow suit and repeal their own versions of Section 13.

Q: Anything else you’d like to say on the topic?
A:  The defenders of censorship are wailing that the repeal of Section 13 will result in an explosion of hatred around the country.  I think it is good to note that Section 13 cases have been stayed since the Hadjis decision, and this threat has not materialized.  Canadians are polite and decent people and we are quite capable of dealing with the handful of internet racists among us by out-arguing them.  We do not need CHRC employees to snoop around our sites or, worse, post hateful messages as “bait”.  We are very thankful to Brian Storseth for putting forward a private member’s bill that acknowledges that Canadians are reasonable and intelligent adults.
Thanks to Connie for her words and just a reminder that this battle that Mark and Connie Fournier are fighting is on the behalf of all of us – and that legal fees are costly.  There will be a fund-raising BBQ for the Fournier’s legal expenses on July 21st, 2013.  Come out and show your support for freedom of speech!


Ezra Levant on the fall of ‘Section 13’

Ezra Levant knows first hand how ‘Section 13’ can – and does – get abused.  Here he is, with Chris Shaffer of the Canadian Constitution Foundation, discussing the issue:

(Sorry – I can’t seem to figure out how to embed the video from this source – please, do follow the link:

As they say – this is just the Federal version – and there are a lot of Provincial versions of this law out there.  So, this is not the end of the road, just a first baby step in the right direction!



Breaking news: Section 13 of Canada’s Human Right’s Code is officially dead!!!

Thanks to BlazingCatfur for this tip (I am shamelessly copying his post – keep checking there often, he’ll have updates:

A long battle but section 13 is dead

As I write this I am still only being updated by text message on the proceedings in the Senate chamber but I am told Bill C-304 has passed third reading and will receive Royal Assent tonight making it law.

What does this bill do?

There are a number of amendments to the act that help limit abuse but the main one is this:

2. Section 13 of the Act is repealed.

A time to celebrate!!!